Published in the July 12, 2017 edition
By MAUREEN DOHERTY
LYNNFIELD — The selectmen chose not to sign the amended sewer agreement between the MWRA, MarketStreet and the town of Wakefield pending an opinion from Town Counsel.
At Monday night’s meeting, Selectman Dick Dalton questioned the need for the town to become involved in the amended agreement, which has already been signed by a majority of the Wakefield Board of Selectmen as well as Theodore Tye on behalf of Market Street Retail South LLC. It is awaiting a signature of executive director of the MWRA Board.
The amendment was necessary for MarketStreet based on the fact that average daily sewage flows from MarketStreet Lynnfield currently exceed the amount that Wakefield and the MWRA agreed to accept back in 2008 before the site was developed. The facility has not yet been fully built out. Its maximum capacity is 475,000 square feet of residential apartments, LIFE townhouse, office/retail space and restaurant establishments.
In 2008, it was estimated that MarketStreet sewage flows would be 76,350 gallons per day (g.p.d.) but flows currently average 97,643 g.p.d., according to the document agreement. Lynnfield does not have a municipal sewerage system; as a result, each property owner is responsible for installing a Title 5-compliant septic system unless a connection can be made to accommodate a specific site, such as MarketStreet, into a community such as Wakefield, which is served by the MWRA.
Town Administrator Jim Boudreau agreed the town’s signature is superfluous to the agreement, but he said it is necessary because Lynnfield was a party to the original agreement, therefore that agreement cannot be amended without the majority of the Board of Selectmen agreeing to it on behalf of the town.
“There are additional payments going to Wakefield based upon that additional sewage,” Boudreau said. These payments are being made by MarketStreet and also take into account the additional sewage anticipated to enter this system when the third and final phase of MarketStreet is completed.
Dalton said his concern is based on the fact that, “I don’t see us as a party to the agreement in a typical contractual relationship. To me, it’s a contractual arrangement between the town of Wakefield and National Development. I have a hard time understanding how we fit into that arrangement.”
Noting that Tom Mullen serves both towns as its town counsel and there could be a conflict of interest issue, Dalton said he believes in this instance that conflict can be “waived.”
Selectman Phil Crawford agreed with Dalton. He pointed out that the amendment to which MarketStreet agreed includes substantial supplemental payments to Wakefield.
“It’s not just a usage agreement; it’s also a financial piece and there’s an additional sum of money being from National Development for the additional sewage they are using,” Crawford said, adding, “We should know by signing (it) does this make us liable for that payment if National Development doesn’t pay it?”
Boudreau said he did not believe it does.
“The additional payment is what is specified in the original agreement. This is just the math that MarketStreet owes this to Wakefield based upon the additional sewage,” Boudreau said. He said the only other change to the agreement was the fact that Wakefield required MarketStreet to reiterate its pledge not to allow the exit 42 access to the site off Rte. 128 in Wakefield to be advertised by any tenants or owners. This is intended as a means to funnel the traffic to the mall via Exit 43 (Walnut Street) in Lynnfield.
The agreement states that MarketStreet must pay Wakefield $425,860. This sum was determined based on the 21,293 additional daily gallons used per day multiplied by $5 per gallon.
Additionally, MarketStreet must make a one-time payment of $100,000 “to be used solely for purposes which will benefit the residents of Wakefield, as determined by Wakefield.”
Another one-time payment will be owed to Wakefield in 180 days that will be determined based on the difference between the present gallons per day usage of 97,643 and the average daily flows calculated for 180 days following project completion.
MarketStreet is required to inform the town of Wakefield in writing both when the property is built out to 90 percent of the authorized maximum 475,000 square feet of construction, and when those buildings are occupied. All supplement payments are in addition to MarketStreet’s obligation to pay its MWRA usage bills.
